2021 Supreme(Del) 533
IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
In The Matter Of : Vandana Dua - Petitioner
Versus
State - Respondent
CRL.REV.P. 967 of 2018 & CRL.M.A. 35635 of 2018 (Stay)
Decided On : 31-08-2021
Advocate Appeared:
For the Petitioner:Mr. Tanveer Ahmed Mir, Advocate with Mr. Gurpreet Singh, Mr.Bakul Jain and Mr.Jatin S Sethi, Advocates
For the Respondent:Ms. Kusum Dhalla, APP, Mr. GP Thareja with Mr.Satyam Thareja and Mr. Harshit Thareja, Advocates
Point of Law : Gang Rape - Discharge - If two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
Headnote:
Indian Penal code, 1860 - Section 109, 376-D, 376, 506, 34 – Code of Criminal procedure - Section 164 - Punishment for abetment if the act abetted is committed in consequence and when no express provision is made for its punishment –Criminal intimidation – Common intention - Scope of the High Court while dealing with an application challenging an order passed by the lower Courts on discharging or refusing to discharge an accused.
Finding of the court : Prosecutrix has not come with clean hands as she did not make any complaint either in the complaint made to the Police Commissioner or in the application under Section 156(3) - The learned Trial Court has not appreciated the documents filed along with the charge-sheet and has accepted the version laid by the prosecution without sifting and weighing the evidence which points out that this FIR against the petitioner and her husband is only an afterthought - Trial Court fell in error in not appreciating that the prosecutrix would have levelled the allegation of rape at the very first instance - Prosecutrix did not state that the petitioner was at Apartments when the rape was committed on her and in her statement under Section 164CrPC which is inapplicable. There are disputes between the prosecutrix and co-accused - A reading of the charge sheet and the material on which reliance is placed by the prosecution, this Court is of the opinion that there is no sufficient material against the petitioner.
Result : Petition disposed of.
JUDGMENT :
Subramonium Prasad, J.
1. This petitioner has approached this Court challenging the orders dated 04.09.2018 and 14.09.2018, passed by the learned Additional Session Judge (SFTC)-2, Karkardooma Courts, dismissing application for discharge filed by the petitioner and directed framing of charges against the petitioner for offences under Section 109 IPC read with Section 376-D IPC.
2. Shorn of details, the facts leading to the present petition are as under:
(a) On a complaint of the prosecutrix FIR No. 571/2016 was registered on 05.11.2016 at Police Station Ashok Nagar for offences under Sections 376/506/34 IPC. It is stated by the complainant that on 08.02.2012 she joined a gym run by accused Krishan Kumar in partnership with accused Deepak Dua (husband of the petitioner). It is stated that the prosecutrix does not have good relations with her husband and she lives separately. It is stated that one day when the prosecutrix was in the gym, her husband went there and started abusing her. It is stated that taking advantage of the fact that she does not have good relations with her husband, accused Krishan Kumar started getting close to the prosecutrix. It is stated that Krishan Kumar told the prosecutrix that as her weight was not reducing, it would be better for her to go to 148 Prayatan Vihar where a special machine had been installed to reduce the weight. It is stated that in November 2013 Krishan Kumar took the prosecutrix to 148 Prayatan Vihar. It is stated that when she reached 148 Prayatan Vihar, she saw that Deepak Dua was already present there. It is stated that when she asked Krishan Kumar as to what Deepak Dua was doing there, Krishan Kumar told the prosecutrix that Deepak Dua was his partner and he operated the said machine. It is stated that when the prosecutrix went into the room, Krishan Kumar put a knife on her and asked her to do what she was being told to do. It is stated that Deepak Dua and Krishan Kumar raped her and took obscene photographs and made videos of her. It is stated that after committing rape, Krishan Kumar showed the obscene photographs and videos to the prosecutrix and threatened her that if she told anyone about the incident, her video and photographs would be uploaded on Youtube. It is stated that Krishan Kumar repeatedly blackmailed the prosecutrix. It is stated that in March 2014, Krishan Kumar took the prosecutrix to flat No.958 Jai Ambey Apartment where Deepak Dua was present and was consuming alcohol. It is stated that in the flat the prosecutrix was blackmailed by Krishan Kumar and Deepak Dua by showing her obscene photographs and videos. It is stated that after blackmailing the prosecutrix both Deepak Dua and Krishan Kumar raped her. It is stated that when the prosecutrix asked Krishan Kumar as to why he was doing this to her, she was told that Deepak Dua and his wife (the petitioner herein) were his partners and if she kept Deepak Dua happy, he would promote him and give him money as well. It is stated that Krishan Kumar promised to marry the prosecutrix. It is stated that on the pretext of marriage, Krishan Kumar established physical relations with her on several occasions. It is stated that Krishan Kumar kept on threatening the prosecutrix by showing her the photographs and videos. It is stated that on 08.04.2016, Krishan Kumar made physical relations with the prosecutrix and threatened her with dire consequences. It is stated that on the basis of this complaint, FIR No. 571/2016 was registered on 05.11.2016 at Police Station Ashok Nagar for offences under Sections 376/506/34 IPC.
(b) On 09.11.2016, the statement of the prosecutrix under Section 164 Cr.P.C was recorded. In her statement under 164 Cr.P.C the prosecutrix introduced the role of the petitioner herein by stating that in March 2014, after Holi, when Krishan Kumar took the prosecutrix to 958, Jai Ambey Apartment, the petitioner herein and Deepak Dua were present there and that after her arrival, the petitioner herein left
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